February 1, 2005
The 8th Circuit speaks on reasonableness!
The Eighth Circuit is keeping the Booker cases coming fast and furious (prior rulings here and here and here). Today the court broke at least a little new ground with US v. Yahnke, No. 04-1098 (Feb. 1, 2005) (available here). The Yahnke case involves an upward departure based on the defendant's criminal history, and the decision is a doodle dandy primarily because it seems to be the first case to address the appellate standard of "reasonableness."
Because of the posture of the case (it is not clear Yahnke raised or briefed a Blakely issue), as well as the substantive issues involved (arguably there was no Blakely problem because of the prior conviction exception and/or the defendant's admissions), it would not be wise to draw too many conclusions from the Eighth Circuit's (relatively brief) Yahnke ruling. Nevertheless, this defendant has struck out because the Eighth Circuit found the sentencing reasonable through these key passages:
In this case, the district court followed U.S.S.G. § 4A1.3(a), finding Yahnke's criminal-history category substantially underrepresented the seriousness of his criminal history and the likelihood of recidivism. After Booker, this court determines whether a sentence is unreasonable based on the factors in section 3553(a). Two of those factors are "the history and characteristics of the defendant" and the "need . . . to protect the public from further crimes of the defendant." 18 U.S.C. § 3553(a)(1), (a)(2)(C). Although the district court labeled its reasons in terms of the sentencing guidelines, the sentence is based on a consideration of the factors in section 3553(a)....
The district court's interpretation of section 4A1.3 is reasonable. Neither the guidelines nor the commentary prohibit considering convictions also used to award criminal-history points. Treating alike defendants with similar criminal histories (or likelihood to recidivate) is based on the factors in section 3553(a). See 18 U.S.C. § 3553(a)(2)(C), (a)(6). Thus, some categories of crimes, such as murder, would be underrepresented by an inflexible 3-point addition for any sentence over one year and one month. See U.S.S.G. § 4A1.1(a).
Yahnke was previously sentenced to 50 years for murder, and paroled after serving only about 7 years. The violent nature of the murder conviction, the length of the sentence, and the time actually served support a finding that Yahnke's criminal history category substantially underrepresented the seriousness of his criminal history. See 18 U.S.C. § 3553(a)(1), (a)(2)(C).
The district court also found that Yahnke's parole violations and other uncharged criminal conduct justified an increase in his criminal history. The guidelines suggest that a district court increase a defendant's criminal history based upon information of uncharged criminal conduct similar to the instant offense — which a district court would now consider as part of the "defendant's history" and "recidivism" factors. See 18 U.S.C. § 3553(a)(1), (a)(2)(C); U.S.S.G. § 4A1.3(a)(2)(E).
The district court found that Yahnke had four parole violations, including three failed urinalysis tests. Yahnke also admitted numerous other incidents of criminal conduct — all drug-related but not charged — for which he originally received no criminal-history points. The district court reasonably considered Yahnke's continued drug-related, uncharged conduct as proof that his criminal-history category substantially underrepresented the seriousness of his criminal history and potential for recidivism. See 18 U.S.C. § 3553(a)(1), (a)(2)(C)....
Based on the record, the district court's sentence is reasonable and not an abuse of discretion.
February 1, 2005 at 01:30 PM | Permalink
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I'd appreciate anyone's thoughts on this question, suggested but left open by the last line in the 8th Circuit's opinion:
Does the fact that the trial judge's sentencing decision was neither "unreasonable" nor "an abuse of discretion" mean that Booker's "unreasonableness" standard id simply an abuse of discretion standard? Or is the 8th Circuit suggesting that the courts of appeals have the authority to review _both_ for unreasonablness _and_ for abuse of discretion? If the latter, how do we derive that additional review authority from Booker's language?
Posted by: JWY | Feb 1, 2005 3:07:01 PM
I continue to believe that any sentence imposed under mandatory guidelines must be reconsidered under the discretionary system because no court of appeals can know for certain if a district court would have imposed the same sentence given the increased ability to deviate from the guidelines and the opportunity to weight personal factors more heavily (or even to consider them at all).
This case presents an exception I think courts will recognize more frequently in affirming for reasonableness or in declining to find plain error: instances in which a district court has departed upwardly. Assuming the record hear bears out that the court considered all the 3553 factors in deciding whether and to what extent to depart (big if), then one could reasonably argue that a different sentence wouldn't result from a resentencing.
Nevertheless, there's only an oblique suggestion that the district court did this. If it did, the court of appeals should have said so. If it didn't, I believe a remand for resentencing would have been appropriate.
Posted by: Alex E. | Feb 1, 2005 3:26:59 PM
Is anyone else seeing a problem with the 8th Circuit applying a "reasonableness" standard to a sentencing occurring pre-Booker? As the 4th Circuit pointed out in its Hughes opinion, whether the sentence is reasonable is not enough when a sentence has yet to be imposed under guidelines that are now advisory.
Posted by: Cynthia Hahn, AFPD | Feb 1, 2005 5:15:07 PM